TITLE: Innovative Management, Inc., B-292818; B-292818.2, November 7, 2003
BNUMBER: B-292818; B-292818.2
DATE: November 7, 2003
**********************************************************************
Innovative Management, Inc., B-292818; B-292818.2, November 7, 2003
Decision
Matter of: Innovative Management, Inc.
File: B-292818; B-292818.2
Date: November 7, 2003
Johnathan M. Bailey, Esq., Law Offices of Theodore M. Bailey, for the
protester.
Glen C. Etelson, Esq., and Deborah L. Moran, Esq., Shulman, Rogers,
Gandal, Pordy & Ecker, P.A. and Lawrence J. Sklute, Esq., Sklute &
Associates, for Choctaw Management/Services Enterprise, an intervenor.
Clarence D. Long, III, Esq., and David M. Hill, Esq., Department of the
Air Force, for the agency.
Paul E. Jordan, Esq., and John M. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.
DIGEST
1. In past performance confidence assessment, where relevance of
offerors* performance was the primary basis for the rating, agency
reasonably evaluated awardee*s performance record--with more relevant
contracts--superior to the protester*s despite offerors* similar records
of very good to excellent performance on their respective contracts.
2. In evaluation of awardee*s proposed professional compensation plan,
where agency considered that awardee*s labor rates were lower than those
paid under current contract, but determined that overall compensation
plan, including some benefits not enjoyed by current employees, was
comparable to that of the current contractor, agency reasonably evaluated
awardee*s plan favorably under requirements of Federal Acquisition
Regulation S: 52.222-46.
DECISION
Innovative Management, Inc. (IMI) protests the award of a contract to
Choctaw Management/Services Enterprise (CMSE) under request for proposals
(RFP) No. F41622-03-R-0003, issued by the Department of the Air Force for
Family Advocacy Program (FAP) services. IMI challenges the evaluation and
award determination.
We deny the protest.
The RFP was issued as a competitive section 8(a) set-aside for personal
services to supplement the FAP staff at Air Force medical treatment
facilities in the eastern continental United States. The FAP*s mission is
to prevent and treat child and spousal abuse utilizing qualified,
masters-level clinical social workers, U.S.-licensed registered nurses,
and other FAP staff personnel. The RFP contemplated the award of a
fixed-rate, labor hours contract for a base year with 4 option years.
Proposals were to be evaluated under four factors: mission capability,
past performance, proposal risk, and price, with the non-price factors
combined significantly more important than price. The mission capability
and proposal risk factors were further divided into the following
subfactors: corporate experience; recruitment/retention plan; and
management. Proposals were to be rated under the technical factors and
subfactors as blue/exceptional, green/acceptable, yellow/marginal, or
red/unacceptable. Proposal risk was to be evaluated as high, moderate, or
low. Past performance information was to be evaluated on the basis of
relevance--very relevant, relevant, somewhat relevant, or not
relevant--and based on this evaluation, the agency was to make an overall
confidence assessment--high confidence, significant confidence,
confidence, neutral/unknown confidence, little confidence, or no
confidence. Award was to be made on a *best value* basis.
Five firms, including IMI and CMSE, submitted proposals. After review of
the proposals, the agency decided to award the contract on the basis of
initial proposals without discussions. The final evaluations for IMI and
CMSE were as follows:
+------------------------------------------------------------------------+
| |IMI |CMSE |
|-----------------------------------+-------------------+----------------|
| Mission Capability | | |
|-----------------------------------+-------------------+----------------|
| Corporate Experience/Risk |Blue/Low |Blue/Low |
|-----------------------------------+-------------------+----------------|
| Recruitment/Retention Plan/ Risk |Green/Low |Green/Low |
|-----------------------------------+-------------------+----------------|
| Management/Risk |Blue/Low |Blue/Low |
|-----------------------------------+-------------------+----------------|
| Past Performance |Signif. Confidence |High Confidence |
|-----------------------------------+-------------------+----------------|
| Evaluated Price |$1,495,252 |$1,489,194 |
+------------------------------------------------------------------------+
The source selection authority (SSA) conducted an integrated assessment of
the offerors* proposal ratings and prices. Based on his review, he
determined that CMSE*s proposal*s higher past performance rating and lower
price made it the best value to the government as compared to IMI*s
proposal. After receiving notice of the award and a debriefing, IMI filed
this protest.
EVALUATION OF CMSE*S PAST PERFORMANCE
IMI asserts that the agency erred in evaluating its and CMSE*s past
performance by giving CMSE a higher confidence rating despite the two
firms* *essentially identical past performance records.* Protester*s
Comments at 2. In this regard, because both firms were scored as
excellent for past performance on all but one contract--and scored as very
good on those--IMI concludes that it was unreasonable for the agency to
rate CMSE*s past performance as high confidence, but IMI*s as only
significant confidence.
In reviewing a protest of an agency*s proposal evaluation, it is not our
role to reevaluate proposals. Rather, we will consider only whether the
evaluation was reasonable and consistent with the terms of the
solicitation and applicable statutes and regulations. CWIS, LLC,
B‑287521, July 2, 2001, 2001 CPD P: 119 at 2.
The evaluation here was unobjectionable. Contrary to the protester*s
view, how well an offeror performed on a past contract was not the sole
focus of the past performance confidence assessment. Rather, the
threshold consideration was the relevance of the offerors* past
performance from the standpoint of the magnitude of effort and complexity
as compared to this acquisition. RFP P: M002(e). In this regard, while
IMI submitted four contracts under which the performance was rated
exceptional, two, performed by its team member, were evaluated as highly
relevant as to magnitude and staffing, and two were evaluated only as
relevant due to the lesser magnitude of one and the more limited staffing
and site requirements of the other. IMI*s rating under the fifth
contract, also performed by its team member, was very good, but that
contract was assessed as only somewhat relevant because it involved a
single social worker. On the other hand, CMSE submitted five contracts,
all of which it performed itself as the prime contractor, and all of which
were rated as highly relevant because they involved the same services as,
and were similar in scope to, this acquisition. The performance under
four was rated exceptional and under one as very good. Thus, while the
offerors* quality of performance was similar, CMSE*s past performance
record included more relevant contracts. This being the case, the agency
reasonably assigned CMSE*s proposal a confidence level of high, while
assigning IMI*s proposal the lower rating of significant confidence.
IMI also asserts that the agency ignored negative information, and a
satisfactory performance rating, contained in a contractor performance
assessment report (CPAR) issued for CMSE*s FAP-Europe contract, which
encompassed the same services as this acquisition. In IMI*s view, the
CPAR rating is inconsistent with CMSE*s high confidence past performance
rating.
IMI*s assertion is without merit; the agency considered the CPAR in its
evaluation and reasonably arrived at CMSE*s overall confidence rating.
While the CPAR indicated that CMSE had failed to perform appropriate
background checks and failed to timely complete the credentialing process,
the CPAR assessing official stated that, once the problems were brought to
CMSE*s attention, the firm assisted in resolving them and expedited the
credentialing process to minimize downtime. Agency Report (AR), Tab 11.
In addition, CMSE*s response comments indicated that the problems may have
resulted from the agency*s lack of established procedures. Id. As part
of the past performance evaluation, the RFP provided for the agency to
take into account the number and severity of any performance problems, as
well as the appropriateness and effectiveness of any corrective actions.
RFP P: M002(e). Here, the agency considered all CPAR comments and the
corrective action taken by CMSE, and concluded that the firm had
demonstrated the ability to overcome the problems. Supplemental AR at 8.
Further, since the CPAR concerned only 1 of the 4 years of performance,
and the entire performance period was rated very good on the relevant past
performance questionnaire, the agency concluded that the questionnaire
represented the more current and comprehensive rating for this contract.
Id. In view of the CPAR*s limited coverage, and the agency*s finding that
CMSE had effectively and efficiently identified and resolved its problems,
we think the agency reasonably evaluated CMSE*s proposal with an overall
high confidence rating.
EVALUATION OF CMSE*S COMPENSATION PLAN
The RFP required offerors* price proposals to include a total compensation
plan setting forth base salaries and fringe benefits proposed for
professional employees, as prescribed in Federal Acquisition Regulation
(FAR) S: 52.222-46. RFP P: L030, S: 3.3.2.1(6). The referenced FAR
provision calls for an evaluation of each offeror*s compensation plan to
ensure that it reflects a sound management approach and understanding of
the contract requirements. FAR S: 52.222-46(a). Proposals envisioning
compensation levels lower than those of predecessor contractors for the
same work were to be evaluated on the basis of maintaining program
continuity, uninterrupted high-quality work, and availability of required,
competent professional service personnel. FAR S: 52.222-46(b). The
provision warns that lowered compensation rates could indicate a lack of
sound management judgment and lack of understanding of the requirement.
Id.
IMI asserts that the agency failed to properly evaluate CMSE*s
compensation plan, noting that, while the offerors* overall prices are
close, CMSE proposed loaded hourly rates for at least two positions that
are lower than those paid by the incumbent firm, IMI*s team member.[1] In
IMI*s view, the agency failed to properly
evaluate the negative impact of CMSE*s lower compensation packages.[2]
The purpose of a review of compensation for professional employees under
FAR S: 52.222-46 is to evaluate whether offerors will obtain and keep the
quality of professional services needed for adequate contract performance,
and to evaluate whether offerors understand the nature of the work to be
performed. ELS Inc., B‑283236, B‑283236.2, Oct. 25, 1999,
99-2 CPD P: 92 at 11.
Here, in its price evaluation, the agency compared each offeror*s
first-year fully burdened labor rates with the 2003 rates being paid under
the incumbent contract and found all of them to be realistic. AR, Tab 15,
at 3. In evaluating the offerors* plans under FAR S: 52.222-46, the
contracting officer found the following with regard to CMSE*s:
The average unburdened labor rates for each of the labor categories is
slightly lower than the rates being paid under the current contract.
However, it appears that the overall compensation plan is comparable to
the current contractor because of additional benefits not currently
enjoyed by the employees under the current contractor. [CMSE] provides
for . . . continued education for covered employees; the contractor
provides for more leave time than the current contractor provides (two
weeks vacation and two weeks of sick leave); and the contractor allows for
comparably valued health and welfare benefits for the employees. Although
the specific benefits vary from the current contractor*s benefits,
[CMSE*s] overall compensation plan appears to be realistic, and provide[s]
a sound management approach that I believe can result in an uninterrupted
high-quality level of work.
Memorandum for Record, July 15, 2003, P: 5. Having made the comparison of
CMSE*s rates with those under the incumbent contract, the contracting
officer recognized the difference in compensation and benefits, but
determined that they were comparable to the current contractor*s.
Proposed rates may be found reasonable where, as here, they are evaluated
as comparable, although not identical to the rates on which the comparison
is based. See TRW Inc., B‑234558.2, Dec. 18, 1989, 89-2 CPD P: 560
at 6. While IMI disagrees with the contracting officer*s judgment, this
does not provide a basis for finding the evaluation unreasonable.[3]
The protest is denied.
Anthony H. Gamboa
General Counsel
------------------------
[1] IMI also asserts that its plan is superior to CMSE*s because it
included different salary rates for the different performance sites, while
CMSE*s plan only included a single rate for each position. There was no
requirement that offerors* compensation plans include separate salary
rates for each performance site. The RFP required only a single loaded
rate to be proposed for each labor category, regardless of the place of
performance. RFP P: L030, P: 3.3.2.1(5.3). Thus, while IMI*s plan shows
greater detail, it does not make CMSE*s plan inferior or unacceptable.
[2] IMI also asserts that CMSE*s lower compensation rates should have
negatively affected the evaluation under the recruitment/retention plan
subfactor. In this regard, it notes that CMSE*s plan offered fewer
benefits (e.g., life insurance and pension) than IMI*s. IMI*s assertion
is without merit. While offerors were required to describe methods of
retaining employees, including benefits, the evaluation criteria for this
subfactor did not include review of salary rates or specific aspects of
the benefit plan. In evaluating CMSE*s proposal as meeting the minimum
requirements under this subfactor, the agency found that CMSE had
demonstrated it had the necessary experience and network capability to
effectively recruit qualified personnel, and had included a sound and
realistic approach to achieve and maintain a minimum of 95 percent
staffing throughout the contract performance period. AR, Tab 16, at 12.
[3] Moreover, the agency states that its positive assessment of CMSE*s
compensation plan has been confirmed in its contract performance. As of
the October 1, 2003 performance start date, CMSE had an 87 percent
recruitment rate, with only six positions unfilled. Supplemental AR at
10. Since then, CMSE has filled one position; identified candidates to
fill three more, and is in the process of identifying candidates to fill
the fifth position. The sixth position is being held open because the
incumbent employee is an active duty reservist who has been deployed.
Id.